Hubbard v. Meritage Homes of Fla., Inc.
| Decision Date | 30 May 2013 |
| Docket Number | D.C. Docket No. 6:10-cv-01714-ACC-GJK,No. 12-15172,12-15172 |
| Parties | CHERIS HUBBARD, Plaintiff-Appellant, v. MERITAGE HOMES OF FLORIDA, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
Appeal from the United States District Court
for the Middle District of Florida
Before CARNES, BARKETT and HULL, Circuit Judges.
Plaintiff Cheris Hubbard appeals the district court's grant of summary judgment in favor of her former employer, Meritage Homes of Florida, Inc. ("Meritage"), on her pregnancy discrimination claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2(a) and 2000e(k), and the Florida Civil Rights Act of 1992 ("FCRA"), Fla. Stat. § 760.10. After review, we affirm.
At the outset, Defendant Meritage points out that Plaintiff Hubbard did not file any opposition to Meritage's summary judgment motion in the district court. Defendant Meritage argues that Plaintiff Hubbard thus forfeited appellate review of the district court's entry of summary judgment on her pregnancy discrimination claims.
That argument fails because when a summary judgment motion is unopposed, the district court must still review the materials submitted in support of the motion and determine whether they establish the absence of a genuine issue of material fact. See United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101-02 (11th Cir. 2004); see also Fed. R. Civ. P. 56(e)(3) (). Accordingly, we review de novo the district court's grant of summary judgment on Plaintiff Hubbard's pregnancy discrimination claims, applying the same legal standards as the district court and viewing the evidence in the light most favorable to the non-moving party. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).1
Defendant Meritage is a builder of planned residential communities. In late October 2008, Plaintiff Hubbard began working for Defendant Meritage as a sales associate at one of its communities, The Oaks at Brandy Lake. In June 2009, Hubbard told Brian Kittle, her direct supervisor, that she might be pregnant. Soon after, Hubbard learned she was not pregnant, but she told Kittle she intended to start a family.
The next day, Kittle transferred Hubbard to the Live Oak Reserve community, Defendant Meritage's most desirable and bestselling community.Hubbard took the place of another sales associate, Thomas Temmel, who was transferred to Lake Roberts.
Kittle testified that he transferred Hubbard because she said she was starting a family, and he wanted to give her a good start by selling lots in Live Oak. In his deposition, Kittle explained, however, that because Live Oak was a high-demand community in an otherwise bad economy, Meritage planned to cycle sales associates in and out of Live Oak to give different employees the opportunity to earn commissions.
Later that summer, Hubbard did in fact become pregnant. Hubbard informed Kittle of her pregnancy on August 25, 2009. The next day, Hubbard was transferred from Live Oak to Indian Lakes, a much slower selling community, trading places with another sales associate, Candace Roberts. Kittle declined Hubbard's requests to be transferred back to Live Oak. Kittle repeatedly questioned Hubbard about whether she planned to take maternity leave or was going to "take the [commission] money and quit."
In December 2009, Defendant Meritage terminated Hubbard's employment for insubordination relating to Hubbard's handling of a particular sales contract. The decisionmakers were James Bagley, Meritage's president, and Doug Bainbridge, Meritage's regional vice president of human resources.
Specifically, on November 30, 2009, Meritage discovered that some of their buyers' sales contracts at Live Oak violated the homeowner's association "monotony rules" prohibiting the same floor plans or elevations on adjacent lots. Three Meritage employees—Plaintiff Hubbard, Thomas Temmel and Candace Roberts—had sales contracts that were affected. Meritage advised all three sales associates of the problem.
Employees Temmel and Roberts both testified that they were told to call their buyers immediately to advise the buyers that they could either change their floor plan or cancel their contract and get a refund. Both Temmel and Roberts called their buyers, and each sent an email to Kittle on December 1 advising that they had resolved the problem with their buyers.
Brian Kittle testified that President Jim Bagley gave instructions to all three employees at the same time in a face-to-face meeting. Candace Roberts confirmed that President Bagley gave her instructions at a division meeting. Hubbard, however, testified that President Bagley contacted her separately by phone. For summary judgment purposes, we accept Hubbard's version.2
According to Hubbard, she did not get such explicit instructions. When President Bagley called Hubbard, he told her that one of her sales contracts violated the monotony rules and stated, "We may need to cancel [the contract]." Hubbard found Bagley's instructions "vague," and "didn't know exactly how to approach the buyer with it and what the options were." After the call, Hubbard called Kittle to ask him "for assistance on calling the buyer to go over some options." According to Hubbard, Kittle told her not to contact her buyer until after management discussed the situation the next morning.
The next day, December 1, Hubbard did not contact her buyer, Minish Patel. On December 2, Patel had an appointment with a design consultant at Meritage's design center to select finishes for his home. That morning, Hubbard told the design consultant to cancel Patel's appointment. Patel arrived at the design center anyway and learned of the problem with his contract.
Meritage's Vice President of Sales, Jack Johanessmeyer, went to the design center to try to salvage the sale to Patel. Johanessmeyer then called President Bagley and advised him of the situation. Bagley believed that Hubbard had tried to circumvent his instructions by going to Kittle for an alternate solution. Bagley contacted Hubbard and told her that her failure to notify Patel "had placed Meritage in a difficult situation and that she had circumvented a directive that [Bagley] personally gave her."
That evening, President Bagley reviewed the situation with Bainbridge, the Vice President of Human Resources, and recommended that Hubbard be terminated. Bainbridge agreed that Hubbard had engaged in serious misconduct. Bainbridge stated that Hubbard's failure to contact Patel and advise him of the problem with the sales contract and her failure to advise Patel not to come to the design center for his appointment constituted insubordination. Bainbridge further stated that Hubbard's not following Bagley's directions and her attempts to circumvent them by contacting a subordinate employee (Kittle) to get a different opinion "had [a] serious impact upon Meritage, including potential loss of a sizeable home sale, negative impact on Meritage's reputation and loss of credibility and trust with Meritage's customers." Accordingly, Bainbridge approved Bagley's recommendation to terminate Hubbard. Hubbard was advised of her termination the next day.
Title VII and the FCRA prohibit certain employers from discriminating "against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1); Fla. Stat. § 760.10(1)(a). The phrase "because of sex" or "on thebasis of sex" in Title VII includes "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k).3
Under Title VII, a plaintiff bears "the ultimate burden of proving discriminatory treatment by a preponderance of the evidence," whether that evidence is direct or circumstantial. Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008) (quotation marks omitted). Where, as here, the plaintiff seeks to prove pregnancy discrimination through circumstantial evidence, the claim may be evaluated under the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1314 (11th Cir. 1994). Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824.4
A plaintiff may establish a prima facie case of pregnancy discrimination by showing that: (1) she is a member of a group protected by Title VII; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4)she "suffered from a differential application of work or disciplinary rules." Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312 (11th Cir. 1999). Generally, when the plaintiff alleges discriminatory discipline, the plaintiff must show that the employer treated similarly situated employees not of the protected class more favorably. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). To make this showing, the plaintiff and her comparators must have engaged in the same or nearly identical misconduct. Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 & n.2 (11th Cir. 2006).
However, a plaintiff alleging pregnancy discrimination "need not identify specific non-pregnant...
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